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Family law judgments

Every Issue

Cite as: May 2011 85(5) LIJ, p.59


Children

Leave to call additional expert refused

In Atkins & Caldwell & Anor [2011] FMCAfam 74 (31 January 2011) Neville FM dismissed an application by the mother for leave to call an expert in “attachment theory” who had prepared a report at the suggestion of the former family consultant two years previously but who, unlike the current family consultant, had not seen the parties or the child since then.

Children
Stay of overseas relocation refused

In Sheldon & Weir (Stay Application) [2011] FamCAFC 5 (24 January 2011) Ryan J allowed a mother to relocate with a young child to Ireland, her country of origin. Ryan J refused the father’s application for a stay of the order pending his appeal, but did require the sale of the mother’s car, the proceeds to be held in trust as security for the return of the child if the appeal was allowed.

The Full Court approved Ryan J’s reasons for refusing a stay, being that the father could not be relied on to cooperate for an expedited hearing, having regard to his history of non-compliance with undertakings and orders; the unsatisfactory situation of the child and mother; the “three-fold increase in the mother’s medication because of the deterioration in her emotional and psychological wellbeing”; evidence that “the child is struggling”; and the mother’s evidence that she would return the child if ordered.

Nullity
Marriage solemnised in India under duress – declared void

In Kreet & Sampir [2011] FamCA 22 (18 January 2011) Cronin J declared void a marriage solemnised in India on the ground that the wife’s consent was obtained by duress within the meaning of s23B of the Marriage Act 1961 (Cth). The wife’s parents, strict adherents to their Indian heritage, opposed their daughter’s wish to marry a Mr U she had met in Australia. The Court found that after assaults by the wife’s father on the wife, her parents took her to India on the pretext of marrying Mr U there, but on arrival her passport was taken, she was refused permission to speak to Mr U, “then introduced [to] the man who was to become her husband”. Cronin J found that the wife was subjected to threats made earlier by her father to Mr U “to kidnap and rape [Mr U’s] mother and sisters”. Cronin J concluded: “I am satisfied that the wife’s physical state at the time of the ceremony was such that she was physically and mentally overborne. Her consent was not real because it was obtained by duress”.

Property
$4.5m hidden by husband overseas – injunction

In Porto (No. 3) [2010] FamCA 1145 (8 December 2010) Dessau J found that a husband (who had claimed he had been defrauded of the family’s wealth by a Mr D in Portugal, his country of birth) had fraudulently taken $4.5m (out of an asset pool of $4.8m) to Portugal and hidden it. On the parties agreeing to an equal division of assets, Dessau J awarded all the available assets in Australia to the wife and a further $2m “to reflect 50 per cent of the [total] assets” to be paid by the husband within 21 days. Dessau J also granted the wife’s application for an injunction restraining the husband from leaving Australia until she had received full payment of her property settlement. A Watch List order was also made, to remain in force until varied by the Court.

Property
Add backs – post-separation inheritance

In Dashwood & Bennett [2011] FMCAfam 93 (4 February 2011) Kelly FM declined to add back the husband’s drawings from his business in the two years since separation or the partial property settlement of $150,000 received by the wife, found to have been used “to meet her reasonable living expenses”. Kelly FM also declined to add back legal fees paid by the parties where the husband argued that his had been paid from his earnings, not from capital, and as to the wife’s legal fees, it was “impossible to discern” whether they had been paid from matrimonial assets or her (post- separation) inheritance. Kelly FM did not agree that the wife’s inheritance should be considered separately from the asset pool because it had “been entirely merged and combined”, it being “more appropriate to deal with the inheritance as a post- separation contribution to the asset pool made solely on behalf of the wife”. Kelly FM added that “[a]ny further adjustment can be considered within s75(2)(o) and when considering the overall justice and equity of the proposed orders”.

Property
Declaration of interests – promissory estoppel

In Wheeldon and Ors [2011] FamCA 40 (7 February 2011) the wife sought a declaration that the husband’s parents (joined as respondents) held a property on trust for the husband. She sought an order that they transfer the property to him and that he then transfer a half interest to her. A month before their marriage, the husband’s father told the parties that “they could live at the G property if they paid its rates”. They raised two children there, living in the property for 26 years until their separation. Fowler J rejected the wife’s claim for equitable relief “by operation of estoppel, either proprietary or promissory, or estoppel by encouragement”, accepting the “unequivocal” denials of the husband’s parents of conversations which promised a gift of the property and finding that “they had [been given] permission to occupy the property and no more”.

Property
Interim property order

In Gordons & Hasse [2010] FamCA 1162 (10 December 2010) Dawe J applied Strahan (Interim Property Orders) [2009] FamCAFC 166 in granting the wife’s application for an interim order that she be paid $250,000 from the proceeds of sale of the former matrimonial home, saying that the payment would be “substantially less than the amount the husband is proposing that the wife receive by way of final property settlement”. Dawe J rejected the husband’s application for payment of the same amount to him, noting that “[t]he husband retains the business and therefore his financial circumstances are not comparable to the wife’s financial circumstances”.

Property
Unvested property – reinstatement of bankrupt in proceedings

In Pacelli & Hopkinson & Anor [2010] FMCAfam 1248 (17 November 2010), subsequent to a property settlement reached between the wife and the trustee of the husband’s estate, Burnett FM ordered that the bankrupt husband be reinstated to the proceedings for the purpose of an application to set aside the consent order enabling him to claim a superannuation fund valued at $13,000 which had not been disclosed as part of the parties’ asset pool and which was exempt from distribution among his creditors.



ROBERT GLADE-WRIGHT, a former barrister and accredited family law specialist, is the founder of The Family Law Book, a looseleaf and online service: see www.thefamilylawbook.com.au. He is assisted by family lawyer Craig Nicol. References to sections of an Act in the text refer to the Family Law Act 1975 (Cth). The full text of these judgments can be found at www.austlii.edu.au.

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